Untitled Texas Attorney General Opinion ( 1968 )


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  •                     April 26, 1968
    Mr. Harry B. Kelton, Director        Opinion No. M-225
    Texas National Guard
    Armory Board                       Re:   Whether certain available
    Austin, Texas 78711                        funds of the Texas National
    Guard Armory Board,,either
    in the State Treasury or in
    banks be legally disbursed
    as cash consideration for
    lands to be acquired at
    Dear Mr. Kelton:                           Camp Maxey.
    you have requeste.dan opinion as to whether certain funds
    in the State Treasury or in banks may be expended for the purpose
    of acquiring land by the Texas National Guard Armory Board. You
    state in your letter as follows:
    "In consummating an exchange of lands in
    the Camp Maxey area with the Corps of Engineers,
    as provided in House Bill No. 641, Acts, 1967,
    60th Legislature, we anticipate further land
    transactions with private land owners in the
    acquisition of approximately 610 acres which
    may require the Armory Board to disburse some
    cash consideration. Based on land values es-
    tablished and used in exchanges with the Corps
    of Engineers a total cash consideration should
    not exceed $SO,OOO.OO.
    "In addition to tracts of land acquired
    by the Armory Board from the Federal Government
    in exchange.for Camp Maxey land there will be a
    cash,consideration of $257.806.60 which we shall
    -1078-
    .
    :
    Mr. Harry B. Kelton, page 2    (M-225)
    deposit in the State Treasury as provided by
    Article 5931-9 and 5931-10 of House Bill No.
    406. Acts, 1967, 60th Legislature. In your
    opinion could we legally deposit such proceeds
    to other than the State Treasury?
    "In your opinion, could any of our available
    funds either in the State Treasury or in banks
    be legally disbursed as cash consideration for
    lands to be acquired at Camp Maxey?"
    Articles 5931-9 and 5931-10, Vernon's Civil Statutes,
    as amended by House Bill No. 406, Acts 60th Legislature, Regular
    Session 1967, ch. 186, p. 415, at pages 419 and 420, read as fol-
    lows:
    "Art. 5931-9.   Transfers and sales.
    "The board may receive  from the Adjutant
    General state-owned National Guard Camps and
    all land and improvements, buildings, facilities,
    installations, and personal property in connection
    therewith and administer the same or transfer it
    and/or any of the board's other property to the
    Board of Control for sale, or make proper disposal
    of such property otherwise when designated by the
    board and the Adjutant General as 'Surplus' and
    when in the best interest of the Texas National
    Guard, its successors   or components. The Armory
    Board and the Board of Control are further au-
    thorized to remove, dismantle, and sever, or au-
    thorize the removal, dismantling, and severance
    of any of said property to accomplish the above
    purposes. All of such property so designated for
    sale, shall, when transferred by the Armory Board,
    be sold by the Board of Control to the highest
    bidder for cash and in the manner provided by
    law for the sale of property belonging to the
    state which is no longer needed, and all funds
    - 1079 -
    or.   Harry   B. Kelton, page 3 (K-225)
    received from such sale shall be deposited in
    the State Treasury to the credit of the Texas
    National Guard Armory Board for the use and
    benefit of the Texas National Guard or their
    successors or components; provided, however,
    that none of these funds may be expended ex-
    cept by legislative appropriation.
    "Article 5931-10. Conditions requiring
    reservation of mineral interests.
    "Any sale or deed made pursuant to the
    terms of this Act shall reserve unto the State
    of Texas a one-sixteenth mineral interest free
    of cost of production; provided, however, that
    the board shall be authorized to reconvey to
    the original grantor or donor all rights, title,
    and interests, including mineral interests, to
    all or any part of the lands conveyed by such
    grantor or donor, and the board shall further
    be authorized, upon a negotiated basis at fair
    market value, to convey to such original grantor
    or donor improvements constructed on the land to
    be reconveyed. All funds derived from any such
    sales shall be deposited by the board in the
    State Treasury, as hereinbefore provided with
    regard to other funds derived from other authorized
    sales."
    Article 5931-5, as amended by House Bill No. 406, supra,
    p. 416, provides, in part, as follows:
    "Art. 5931-5.   Specific powers.
    "The board shall possess but is not
    limited to the following powers:
    II
    . . .
    "(6) to acquire by gift or purchase, for
    use as building sites or for any other purposes
    -1080-
    or. Barry B. Kelton, page 4 (~-225)
    deemed by said board 'to be necessary in con-
    nection with or for the use of units of the
    Texas National Guard, prowrtv of anv and
    everv description. whether real, wrsonal.
    or mixed. . . .'I (Rnphasis  added.)
    Sections 1 and 2 of House Bill No. 641, Acts 60th Leg-
    islature, Regular Session 1967, ch. 275, p. 661, providet
    "Section 1. The Texas National Guard
    Armory Board is hereby authorized to convey
    by special warranty deed to the Corps of En-
    gineers of the United States Army all rights,
    title and interests in all or any part of the
    lands at Camp Maxey, Lamar County, Texas, and
    to accept from the Corps of Engineers acting
    for the United States Army conveyances of the
    lands to be received in exchange and to be used
    for the training of units of the Texas National
    Guard.
    "Sec. 2. The Texas National Guard Armory
    Board is further authorized to buy, sell, convey
    and exchange all rights, title and interests, in-
    cluding mineral interests, in all or any part of
    the lands in Camp Maxey, including such lands
    hereafter acquired in exchange from the Corps
    of Engineers of the United States Army: provided
    such lands received or conveyed are for the pur-
    pose of consolidating or joining the various
    tracts within a common perimeter to reduce or
    eliminate isolated privately owned tracts that
    would require the rights in ingress and egress
    at Camp Baxey."
    The current General Appropriation Act for the year
    ending August 31, 1968, (Senate Bill No. 15, Acts 60th Legisla-
    ture, Regular Session,p. 2152)contains the following appropriation
    to the Texas National Guard Armory Board:
    "There is hereby appropriated to the Texas
    National Guard Armory Board all funds which have
    -1081-
    Mr.   Harry   B. Kelton, page 5 (M-225)
    been or may be derived from sales of State-
    owned National Guard camps and other property
    owned by the Texas National Guard Armory Board
    and of land, improvements, buildings, facilities,
    installations and personal property in connection
    therewith, as authorized by House Bill No. 406,
    Acts, 1967, 60th Legislature. Such funds shall
    be expended by the Texas National Guard Armory
    Board for the use and benefit of the Texas National
    Guard for one or more of the following purposes:
    (1) As a participating fund in the construction
    of armories financed in part by the United States
    Government: ,or (2) As a construction fund to be
    used by the Armory Board: or (3) As a debt-servic-
    ing fund as provided in House Bill No. 406, Acts,
    1967, 60th Legislature, Regular Session. Provided,
    however, that all such funds as are not actually'
    used for the purposes hereinbefore specified shall
    remain on deposit with the State Treasurer to the
    credit of the Texas National Guard Armory Board
    for the use and benefit of the Texas National
    Guard, their successors or components, as pro-
    vided in House Bill No. 406, Acts, 60th Legisla-
    ture. There is hereby re-appropriated to the
    Texas National Guard Armory Board all sums refunded
    to-said Board from any source when such funds were
    originally expended for any of the purposes enum-
    erated in Items 1 through 5 above. Such re-appro-
    priated funds may be expended for any of the pur-
    poses enumerated in Items 1 through 5 ab~ove."~'~
    ``~
    Subdivision 6 of Article 5931-5 specifically authorizes
    the       National Guard Armory Board to acquire by purchase pro-
    Texas
    perty of any and every description whether real, personal or mixed;
    therefore, the board has the authority to acquire by purchase the
    land described in your request.
    The Legislature specifically provided that funds derived
    from sales of state-owned National Guard camps and other property
    owned by the Texas National Guard Armory Board "shall remain on
    deposit for the use and benefit of the board." The Legislature
    -1082-
    Mr. Harry B. Kelton, page   6 (M-225)
    did not appropriate monies to the board for the all inclusive
    purpose of carrying out the specific powers granted the board
    by House Bill No. 406. Gn the contrary, the Legislature limited
    the purposes for which the appropriation could be expended to
    three (3) specific purposes, namely: "(1) As a participating
    fund in the construction of armories financed in part by the United
    States Government: or (2) As a construction fund to be used by the
    Armory Board: or (3) As a debt-servicing fund as provided in House
    Bill No. 406, Acts, 1967, 60th Legislature, Regular Session."
    The acquisition of land is not "a participating fund in
    the construction of armories;" not "a construction fund to be used
    by the Armory Board;" and is not "a debt-servicing fund." There-
    fore, such monies have not been appropriated for the purpose of
    acquiring land. The phrase "shall remain on deposit for the use
    and benefit of the board" does not constitute an appropriation:
    rather, such language prevents such monies from reverting to the
    General Revenue Fund of the state. you are, accordingly, advised
    that monies in the State Treasury may not be expended for the pur-
    chase of land except as a necessary incident to the construction
    of armories. Since the board is specifically authorized by the
    provisions of Subdivision 6 of Article 5931-5 to acquire land by
    purchase, the board may expend for the purchase of land monies in
    its custody and control so long as such monies are not in the State
    Treasury.
    SUMMARY
    Proceeds received by the Texas National Guard
    Armory Board in consummating an exchange of land in
    the Camp Maxey area are to be deposited in the State
    Treasury. Such monies are not appropriated by the
    Legislature for the purchase of land and, therefore,
    none of the appropriated funds may be expended for
    such purpose. However, monies under the control of
    the Board not in the State Treasury may be expended
    for the purchase of land.
    -1083-
    t&. Harry B. Kelton, page 7 (M-225)
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Hawthorne Phillips, Chairman
    Kerns Taylor, Co-Chairman
    W. V. Geppert
    Roger 'Qler
    John Grace
    Ray McGregor
    A. J. CARUBBI, JR.
    Bxecutive Assistant
    - 1084-
    

Document Info

Docket Number: M-225

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017